TEGL_12-16_Acc.pdf

ETA Advisory File Text

EMPLOYMENT AND TRAINING ADMINISTRATION ADVISORY SYSTEM U.S. DEPARTMENT OF LABOR Washington D.C. 20210 CLASSIFICATION TAA CORRESPONDENCE SYMBOL OTAA DATE December 22 2016 RESCISSIONS UIPL No. 17 -87 EXPIRATION DATE Continuing ADVISORY TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 12-16TO STATE WORKFORCE AGENCIES STATE WORKFORCE LIAISONS AFFILIATE AMERICAN JOB CENTER MANAGERS COMPREHENSIVE AMERICAN JOB CENTER MANAGERS STATE WORKFORCE ADMINISTRATORS STATE AND LOCAL WORKFORCE BOARD CHAIRS AND DIRECTORS STATE LABOR COMMISSIONERS TRADE ADJUSTMENT ASSISTANCE LEADS FROM PORTIA WU s Assistant Secretary SUBJE CT Questions and Answers on the Effects of Strikes and Lockouts on Eligibility for Trade Adjustment Assistance TAA and Trade Readjustment Allowance TRA 1. Purpose. To assist State Workforce Agencies SWAs or agencies designated by Governors as Cooperating State Agencies CSAs also jointly referred to as states in administering the TAA Program by providing guidance on the effects of strikes and lockouts on eligibility for TAA Program benefits including TRA.2. References. Chapter 2 of Title II of the Trade Act of 1974 as amended Pub. L. 93-618 1974 Act a nd as amended Trade Act Trade Adjustment Assistance Reauthorization Act of 2015 TAARA 2015 Title IV of the T rade Preferences Act of 2015 P.L. No. 114-27 Federal Unemployment Tax Act FUTA Section 3304 26 U.S.C. 3304 2012 20 Code of Federal Regulations CFR Part 617 Unemployment Insurance Program Letter UIPL No. 17-87 Questions and Answers on the Effects of Strikes and Lockouts on Eligibility for Trade Readjustment Allowances dated May 20 1987.3. Background. The Employment and Training Administration ETA is updating guidance on the effects of labor disputes on TAA Program benefits and particularly the effects on TR A eligibility after receiving a number of inquiries from states. While answers were provided in UIPL No. 17-87 this directive consolidates the questions asked rescinds UIPL No. 17-87 and provides further guidance. This guidance includes a new statement that an individual 2 experiencing a lockout can be an adversely affected worker who if otherwise eligible may be eligible to receive TAA benefits including TRA. The Trade Act of 1974 Pub. L. No. 93-618 as amended codified at 19 U.S.C. 2271 et seq. Title II Chapter 2 established the Trade Adjustment Assistance for Workers TAA Alternative Trade Adjustment Assistance ATAA and Reemployment Trade Adjustment Assistance RTAA programs. These programs collectively referred to as the TAA Program provide assistance to workers who have been adversely affected by foreign trade. The Trade Act was last amended by the Trade Adjustment Assistance Reauthorization Act of 2015 TAARA 2015 . To obtain TAA Program reemployment services and benefits a worker must first be part of a group of workers that is the subject of a petition filed with and certified by the U.S. Department of Labor. After a worker group certification is issued each worker in the group must then individually apply for services and benefits through their local American Job Center sometimes known locally as One-Stop Centers or by other names . The CSA will issue a determination of the workers individual eligibility for TAA Program benefits. 4. Questions and Answers. Sub-Section 1 Lockouts 1 Q. May a worker establish individual eligibility for TAA Program benefits based on a separation which is due to a lockout A. Yes. To qualify for TRA or other TAA Program benefits the Trade Act requires that a worker meet the definition of adversely affected worker. Section 247 2 of the Trade Act 19 U.S.C. 2319 2 defines adversely affected worker as an individual who because of lack of work in adversely affected employment has been totally or partially separated from such employment. A total separation is defined in Section 247 10 19 U.S.C. 2319 10 as the layoff or severance of an individual from employment with a firm in which adversely affected employment exists. The regulations at 20 CFR 617.3 z define a layoff as a suspension of or separation from employment by a firm for lack of work initiated by the employer and expected to be for a definite or indefinite period of not less than seven consecutive days. The Department has determined that a separation due to a lockout where the lockout is expected to be for a definite or indefinite period of not less than seven consecutive days is a qualifying separation for TAA purposes and a worker may establish TAA Program benefit eligibility based on such separation. Whether the worker was separated due to the lockout or for another reason must be determined for each individual by the state. 2 Q. If state law allows Unemployment Insurance UI benefits to be paid to a worker who is locked out can the worker be eligible to receive TRA 3 A. Yes TRA may be paid to a worker who is locked out if all other TRA eligibility requirements including the UI eligibility and the wage qualifying requirements are met. Sub-Section 2 Strikes 1 Q. May a worker establish individual eligibility for TAA Program benefits based on a separation which is due to a strike A. No. The Trade Act requires that a worker have a lack of work separation from adversely affected employment to qualify for TRA or other TAA Program benefits. Since a separation due to a strike was not initiated by the employer it is not a lack of work separation under the Trade Act and a worker may not establish individual TAA Program eligibility based on such a strike. 2 Q. If a worker who was on stri ke for fewer than 26 weeks returns to work after the dispute has ended and is told by the employer that there is no longer any work for him or her can he or she establish individual TAA Program eligibility A. Yes. This separation is due to lack of work and not a strike. However all other requirements including the requirement to have 26 or more weeks in adversely affected employment with wages of 30 or more including qualifying weeks of leave or other work absences listed in Trade Act section 231 a 2 19 U.S.C. 2291 a 2 within the 52 week period ending with the week of separation must also be met with respect to the separation. 3 Q. If a worker who was on strike for more than 26 weeks returns to work and is then laid off within two weeks because of lack of work can he or she meet the wage qualifying requirements to receive TRA A. No. In all cases the worker must have 26 or more weeks in adversely affected employment with wages of 30 or more including qualifying weeks of leave or other work absences listed in Trade Act section 231 a 2 19 U.S.C. 2291 a 2 within the 52 week period ending with the week of separation to meet the qualifying requirements of Section 231 a 2 of the Trade Act 19 U.S.C. 2291 a 2 . Since the strike was for more than 26 weeks it will not be possible for the worker to meet that requirement. 4 Q. If a worker who is out of work because of a strike decides to enter training may the training be approved for TAA purposes A. Training may be approved under the Trade Act only if there is a lack of work separation to establish eligibility which as noted above cannot be established by a strike. However if the worker had established individual eligibility for TAA Program benefits before the strike through a previous qualifying separation he or she may be approved for TAA training if the requirements of Section 236 a of 4 the Trade Act 19 U.S.C. 2296 a and 20 CFR 617.22 are met . Additionally eligibility for basic or additional weeks of TRA may be available if all requirements for receipt set forth in Trade Act section 231 a 19 U.S.C. 2291 a are met and state law allows payment of UI during a strike. 5 Q. Is a worker who was on leave at the time a strike occurred individually eligible for TAA Program benefits if he or she does not return to work because of the strike A. No. There is no lack of work separation to establish eligibility. 6 Q. Where a worker receives a notice of layoff after the settlement of a strike in which he she participated what is the date of separation for purposes of the worker s eligibility for TRA A. The date of separation is the effective date of the notice for TRA purposes. A worker on strike remains in employment status and is not separated from employment until an actual separating action is taken by the employer. Whether a separating action taken by an employer is a layoff for lack of work for TAA purposes is a fact to be determined in each case and this finding is necessary to establish that the worker is an adversely affected worker. 7 Q. Would an individual who was receiving TRA while in TAA approved training be disqualified from receiving further TRA payments if while a strike was in progress the individual was offered and refused employment in an establishment where jobs are vacant because of the strike A. No. The individual could not be denied TRA by a state on these facts without violating the labor standards in Section 3304 a 5 A of the Federal Unemployment Tax Act FUTA . This section requires that compensation not be denied to an otherwise eligible individual for refusing to accept new work if the position offered is vacant due directly to a strike lockout or other labor dispute. Denial of TRA in this situation would also be inconsistent with Section 3304 a 8 of the FUTA prohibiting denial of benefits based upon lack of availability for work while the individual is in training approved by the State and Section 236 d 2 of the Trade Act 19 U. S.C. 2296 d 2 prohibiting denial of benefits because of the application to any such week in training of the provisions of State law or Federal unemployment insurance law relating to availability for work active search for work or refusal to accept work and 20 CFR 617.18 b 1 . 8 Q. If a plant is permanently closed down immediately following the settlement of a strike what is the date of separation for those workers who participated in the strike 5 A. The date of separation is the effective date of the notice the employer provided to the claimant that work is not available or the effective date of the plant closure. 9 Q. May a worker who is not participating in a strike qualify for individual TAA Program benefits if the worker is laid off because his her employer supplies a firm involved in the strike A. If the worker group of which he or she is a member has been certified as eligible to apply for TAA Program benefits then a worker who is laid off because the firm for which his or her employer supplied workers no longer needs th e workers due to a strike may experience a lack of work separation for which he or she could qualify for TAA Program benefits . 5. Action Requested . State s are requested to review the above information and disseminate this guidance to appropriate staff. Thi s guidance must be followed in future determinations. In addition a ny pending determinations including those determination s that are under review or appeal at any stage of the administrative or judicial process that are impacted by this guidance must be remanded for reconsideration in accordance with this guidance if permissible under state law . 6. Inquir ies. States should direct all inquiries to the appropriate ETA Regional Office.